The Children's Rights Working Group was convened in June 2019 to inform the development of a model that incorporates the United Nations Convention on the Rights of the Child (UNCRC) into domestic law in Scotland.

The group uses the 'Incorporating the UN Convention on the Rights of the Child into Scots Law consultation' as a key framework for its work.

The output from these discussions will inform policy decisions for a draft Bill to incorporate the UNCRC within the current session of Parliament. The working group will also consider how the consultation findings and legislation might support wider cultural change and understanding of children's rights.

The three themes for the working group are:

  • Legal mechanisms for incorporating the UNCRC into domestic law;
  • Embedding children's rights in public services; and
  • Enabling compatibility and redress.

Emerging issues - Reserved and devolved functions in Incorporating the UNCRC into Scots Law

On 10 December 2019 Dr Kenneth Meechan (Chair of FOI, Data Protection & Human Rights, SOLAR) published a discussion paper on the current approach of the working group.

He explains that the current working group approach is that the UNCRC could be incorporated in relation to devolved powers exercised by public authorities, but not in relation to matters which are reserved to the UK Parliament or the UK Government.

Dr Meechan sets out his view that the problem with this approach is that public authorities do not routinely think of their functions in terms of whether they are exercising reserved or devolved functions.

And that such an approach will then place an additional burden on public authorities in having to act compatibly with the UNCRC in relation to some but not all of their functions.

Finally, he considers there will be the added difficulty of having to explain to rights holders what their actual rights are.

An alternative approach

Dr Meechan suggests that the current approach of the working group is unnecessarily restrictive in scope as well as being impractical in application.

He argues that the Scottish Parliament has legislative jurisdiction over all bodies exercising mixed functions or no devolved functions and could legitimately create new obligations for such bodies without offending the limits of the parliament's jurisdiction.

Furthermore, that in accordance with Schedule 5, Part 1 Paragraph 7 to the Scotland Act 1998 the current proposals on implementing the UNCRC fall within the exception in that they are international obligations and therefore not reserved at all.

The final recommendations from the working group will inform the initial approach at least to drafting the legislation required to incorporate the UNCRC into Scots Law and therefore the extent to which public authorities will be required to have "due regard" or a "duty to comply" (or some other final form of words) with the UNCRC.

To properly achieve incorporation, the Bill must make clear to rights holders what rights they have and also make clear to public authorities their duties under the Bill.

The Bill will also require to make clear what happens if these requirements are breached.